“The purpose of this project is to discharge and satisfy any obligations on the part of the United States that presently exist as the result of the 1943 Agreement, between the U.S. Department of Interior (DO), Tennessee Valley Authority, Swain County, North Carolina , and the state of North Carolina. The Agreement regarded the creation of Fontana Dam and Reservoir, which flooded a state road within Swain County. As part of that agreement, 44,170 acres of land were ultimately transferred to the DOI and made part of the Great Smoky Mountains National Park (GSMNP). The 1943 Agreement also contained a provision requiring the DO to construct a two-lane, dustless surface road through the park, along the north shore of the newly formed Fontana Reservoir, to replace the flooded NC 288.”

We have accepted that formulation as definitive for this EIS.

You state that “[the purpose of the proposed action is to ...” EC, p.2. The alternatives of no build alone, partial build, or construction of a picnic area do not discharge or satisfy the obligations of the United States. While there may be temptation on your part simply to do something, choosing any of these options will merely insure that this controversy will resurface in a few years.

The only remaining alternative that meets the purpose and need is the settlement and this option should be selected without further expense to taxpayers.

The only viable and legal solution to this issue is a cash settlement with Swain County. This alternative satisfies the purpose and need of the EIS. Swain County has repeatedly requested a monetary settlement of $52 million in full and fair settlement of all issues arising our of the 1943 Agreement. Acceptance by Swain County of this settlement in lieu of construction of the North Shore Road would satisfy and discharge all obligations of the United States under the Agreement. Swain County is a signatory party to the 1943 Agreement. Any change to that agreement requires the consent of Swain County. None of the partial build alternatives satisfy the agreement or have the approval of Swain County. The full build alternative technically satisfies the 1943 agreement. However, it does not meet 2005 realities. The 1943 agreement was entered to replace a transportation corridor. The proposed road would constitute an obvious impairment of a wide range of park resources and its gross violation of law and policy make it an unsuitable alternative that should be summarily rejected. The cash settlement, which both Swain County and the state of North Carolina are on record supporting, is the only reasonable and legal alternative.

The partial build alternatives must not be chosen because they will not serve the stated purpose and need for this project, which is “to discharge and satisfy any obligation on the part of the United States that presently exists because of the 1943 Agreement.” The partial-build alternatives cannot discharge the 1943 agreement through performance because the 1943 agreement specified a road on the north shore of Fontana Lake, connecting Bryson City and Deal's Gap. Thus, because the partial build alternative will not discharge the United States obligations under the 1943 agreement through performance and because Swain County has resolved to accept only a monetary settlement, the partial build alternatives are not viable or reasonable alternatives and cannot serve as the agency's preferred alternative.

The No Action, Laurel Branch Picnic Area and Partial Build to Bushnell Alternatives do not serve the Purpose and Need of this project. Although the Preliminary Alternatives Report states that each of the alternatives chosen for detailed study were screened for their ability to serve the project's purpose and need, only two of the alternatives chosen, the Monetary Settlement and the North Shore Corridor, satisfy that standard. As articulated by the NPS, the purpose of this project is to “to discharge and satisfy any obligations on the part of the United States that presently exist as the result of the July 30, 1943, Memorandum of Agreement (1943 Agreement) between the United States Department of the Interior (DOT), the Tennessee Valley Authority (TVA), Swain County, North Carolina, and the state of North Carolina.” PAR at 2. The Service's stated need for this study is “to determine whether or not it is feasible to complete the road and to evaluate other alternatives that would satisfy the obligation.” PAR at 2.

The 1943 agreement can be discharged and satisfied only by discharging the United States ' commitments under the 1943 agreement or by tendering substitute performance acceptable to all parties to the contract. Selection of the North Shore Corridor alternative and construction of the project would discharge the 1943 agreement through performance. The Monetary Settlement would discharge the 1943 agreement through the agreement of all signatories to accept substitute performance. Swain County is a signatory to the contract. The Swain County Board of Commissioners, the county's governing body and the only body with authority to settle contracts on behalf of the county, N.C. Stat. 153A-11, 153A-34, resolved on February 11, 2003 to seek a cash settlement of the 1943 agreement. Thus, the Monetary Settlement and North Shore Corridor alternatives would serve the stated purpose and need of this project.

The remaining alternatives, however, would not discharge the obligations of the United States under the 1943 agreement and must not be selected as the agency's preferred alternative. “When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.” Angoon v. Hodel, 803 F.3d 1016, 1021 (9t1 Cir. 1986).

The no action alternative would continue the status quo and leave the United States ' obligations under the 1943 agreement unresolved. The partial-build alternatives would also fail to satisfy the letter of the 1943 agreement. The Preliminary Alternatives report recognized that construction of N.C. 28 along the southern edge of Fontana Lake did not discharge the United States ' obligations under the 1943 agreement because that agreement “specified a road on the north shore of Fontana Lake, connecting Bryson City and Deal's Gap.” PAR at 9. Nonetheless, the report fails to recognize that the Partial Build to Bushnell and Laurel Branch Picnic Area alternatives fail to serve the purpose and need for this project for the same reason. Neither partial build alternative would meet the explicit requirement of the 1943 Agreement to connect Bryson City and Deal's Gap. Accordingly, neither partial build alternative would satisfy and discharge the obligations of the United States through performance.

Furthermore, the partial build alternatives can not serve as a basis for discharging the obligations of the United States under the 1943 agreement through settlement. That result can be achieved only through the consent of Swain County and the other signatories to the agreement. As noted by the NPS, Swain County has offered to settle the 1943 agreement on specific terms which do not include a partial build. The preliminary alternatives study suggests that the Partial Build to Bushnell alternative was retained for further study because “based on previous public comment, the Bushnell Area may be a viable solution to settle the 1943 Agreement.” Public comment, however, even favorable comment from Swain County citizens, cannot salvage the feasibility of the partial build alternative when the governing body of Swain County will not accept that alternative as substitute performance under the 1943 agreement. Thus, because the partial build alternatives will not discharge the United States obligations under the 1943 agreement through performance and because Swain County will not agree to settle the 1943 agreement on those terms, the partial build alternatives are not viable or reasonable alternatives and cannot serve as the agency's preferred alternative.

One wonders what the Laurel Creek and the Partial-Build Alternative to Bushnell have to do with the North Shore Road project, as they do not address the 1943 agreement at all. Only the No Action, the Cash Settlement, and the Northern Shore Corridor address it. Would the 1943 agreement be fulfilled if the Branch Picnic Area were chosen that costs $5 million instead of handing over $52 million to Bryson City ? I don't think so. There has to be a credible compensation for this promise that could not be kept (of course, we all know that the government breaks promises all the time) . There may be kinder and gentler projects for some degree of enhancement of recreation activities in the southern park or on its fringes, but they should not be pursued as alternatives of this battering ram that is the North Shore Road.

We understand that the people who lived and worked on the North Shore have strong feelings regarding this project. But we would like to know why the descendents of people who sold their land feel that their desires or concerns should be given any special consideration? When we sell land, a house, or other property, we do not have any right to go back to the person to whom we sold it and make demands on them simply because we once held title to it. These folks are not the only people in the history of this country to have been “forced” to sell land in the “public interest”. At least their ancestors were given some compensation for the land, unlike the Cherokee who were forcibly removed to make way for them. The 1943 agreement was made with Swain County, not with the families who once lived on what is now the North Shore of Fontana Lake. With this fact foremost in our minds, what is in the best interest of all of the residents of Swain County?

History shows that a partial build will not settle the conflict. Portions of the road have been built and the controversy continues. Therefore, any partial build alternative does not address the purpose and need of the project.

1943 Agreement

Those who have ancestors buried within what is now within the Great Smoky Mountains National Park are not privileged by that fact to speak for the County. The Existing Conditions correctly interprets Vance v. TVA, 738 F.2d 1418 (4th Cir. 1984), which held that “the 1943 Agreement did not address access to cemeteries and was not intended for that benefit any more so than for any other citizen of the county or state.” EC, p. 51. The Supreme Court has concluded that all landowners who sold to the federal government “have received full compensation for their property.” United States v. Welch, 327 U.S. 546, 551 (1946). It is the County that has a legal interest in the original agreement, and not any smaller group of former or present County citizens. The fact that a few people would prefer a different resolution to the unsettled 1943 Agreement does not change contract law. Contracts can be broken and agreements can be changed. Swain County no longer wishes to have the benefit of its original bargain, clearly expressing instead a preference for a cash settlement. This has the added benefit of being a much better deal for the Great Smoky Mountains National Park and for taxpayers, and so there is absolutely no reason to build the North Shore Road or any part of it.

The 108th Congress of the United States introduced “The Swain County Settlement Act of 2004” to provide for the settlement of the claims of Swain County, North Carolina, against the Untied States under the agreement dated July 30, 1943.

In the so-called “1943 Agreement” - a four-party contract between TVA, the US Department of the Interior (USD1), the State of North Carolina , and Swain County , NC — the USDI undertook to build a new road to replace a primitive road that was inundated by Fontana Reservoir, provided that Congress appropriated funding for such construction. Short segments were constructed north of the Reservoir (in the Park) in 1948 and by 1962, respectively, namely, 0.93 miles at the Fontana Dam end (in the west) and 6.2 miles at the eastern end, near Bryson City . In the meantime, a very good road connecting the two ends (NC 28) was completed south of the reservoir (outside the Park). Construction of the 6.2-mile segment in the Park had caused severe environmental damage, and NPS convened an expert advisory panel, which in 1962 concluded that “continuation of such damage to natural park values is indefensible from either the standpoint of conservation or visitor use.” USDI therefore requested no further funding for North Shore Road construction.

And that is how matters stood until late in 2000, when Congressman Charles Taylor (R-NC) attached a rider to a must-pass transportation appropriations bill (thus avoiding public notice or congressional debate) that appropriated $16 million for further road construction. It was this action that forced NPS to undertake the current study. The NEPA process that will culminate in the EIS is, in fact, funded from part of the $16 million.

To satisfy the US Government's obligation would be to honor the 1943 agreement.

This is an emotional issue, but it seems unreasonable to want something that was promised 60 years ago just because it was promised. Times change, there are many more other beneficial options than building a road on the North Shore when Highway 28 is already in existence. In reality, building the North Shore Rd. would probably remove more tourism from Swain County than it would add to it. This is an "unspoiled" section of the park and a road would not enhance this situation.